On Wouter Wils’s last paper: the medium is not the policy (plus other good reads)

I could not make it to Wouter Wils’s visit to London last week, but fortunately he has shared his views online. The paper – short and to the point – is a refreshing read that dispels some commonly held views about commitment decisions. It is, to begin with, a great reminder that one should be very careful when analysing, and making inferences from, data (this is definitely an area where lawyers have much to learn from economists!).

But more important is Wouter Wils’s attempt to put commitment decisions in perspective. In line with the points made in the paper, I keep telling to anybody who is willing to listen that it is wrong to perceive commitment decisions as having significantly changed the enforcement landscape. Informal settlements existed under Regulation 17, and exemptions worked in many ways like today’s Article 9 decisions (just think of the seamless transition exemplified by UEFA Champions League, an exemption, and Bundesliga, the first ever – if I remember correctly – commitment decision).

In the same vein, it is usually pointed out that commitment decisions are rarely ever challenged before EU courts and that, as a result, they leave substantive questions unaddressed. But I would be interested to see whether the old exemptions were really challenged much more often that commitment decisions and thus whether there is a marked difference in this sense with the previous regime. In case you are curious too: my wonderful research assistant and I are gathering the data and should be able to share some findings soon!

The underlying theme in the paper is probably that commitment decisions are just that – an instrument through which policy is expressed. And I agree. We have reached a point where some substantive trends in EU competition law and policy – for instance, the perceived ‘regulatory’ turn in the field – are explained by the recourse to commitment decisions. From the perspective of some commentators, the medium would determine the policy, which does not seem correct. As the experience of the old regime shows, it is the policy that determines the instruments, whether these are formal ones or created in an informal way to address some enforcement needs (which cannot always be predicted or anticipated in legislation).

Wouter Wils is not the only one who has been productive lately. @CompetitionProf, aka our co-blogger emeritus, sticks to his prolific pace. He has recently written and presented (at the OECD, no less) on oligopolies and on competitive neutrality. And we received earlier this week a good summary (forthcoming in JECLAP) of the main issues raised by the on-going e-commerce sector inquiry and prepared by Lars Kjølbye, Alessio Aresu and Sophia Stephanou. By the way, Alfonso will be speaking on this topic together with Thomas Kramler in Madrid in a couple of weeks.